The shape of future parliamentary scrutiny of UK-EU relations Contents

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3Next steps: a proposed way forward

Introduction

41.Whilst Chapter 2 outlined the areas of the UK-EU relationship that will require ongoing scrutiny, this Chapter proposes a new framework for conducting that scrutiny. It would not be appropriate for the same EU scrutiny mechanisms to exist post-Brexit that were in force during our membership of the EU: Parliament needs to adapt. As noted by UK in a Changing Europe:

‘Taking back control’ was a key message during the referendum campaign; Parliament needs to be sure that—where appropriate—control returns to the UK’s legislatures, not just its governments.76

42.Some commentators have noted that even during the Transition Period Parliament’s scrutiny mechanisms of UK-EU relations were not fit for purpose. For example, in Dr Hannah White’s view “committees have done well in promoting openness of Government. They have been able to ask questions and get things on the record that otherwise would not have been but, in terms of influence or, indeed, informing the public, they have struggled.”77 In addition, Dr Sara Hagemann told us that “I would not want to give a grade, as such, to the success of the Committee or Parliament, but certainly the structures that are in place have made it difficult for Parliament to influence the process in any significant way.”78 She went on to say that “in the specific negotiations between the UK Government and the EU, it has really been the Executive in control.”79

43.One of the problems with the current set up, as noted by the Centre for European Reform, is that EU-related work of the Commons is divided between different committees and this can lead to duplication or contradictory recommendations on the same issues.80 They have highlighted that Parliamentarians will need to “develop new dynamic structures” to enable them to shift the balance of their EU work.81

44.The Liaison Committee has also considered this matter. In its Report on select committee effectiveness it considered the potential factors, principles, structures, resources and provision of information that it believed should help guide the House in shaping its future EU-related operations. It recommended that any approach adopted by the House needed to be “dynamic, cohesive, collaborative and flexible”.82 It also stressed the importance of avoiding the “arguably inevitable”83 duplication of Committee work that took place during the Article 50 negotiations.

European Affairs Committee

45.The Chancellor of the Duchy of Lancaster has noted more than once that it is for Parliament to decide what should happen next in terms of future scrutiny of UK-EU affairs.84 As we outline below, many commentators are of the view that the most effective way for the House of Commons to scrutinise UK-EU relations going forward would be the creation of a new ‘European Affairs Committee’ to replace both this Committee (the Committee on the Future Relationship with the EU) and the European Scrutiny Committee. Now that we have left the EU and the Transition Period has ended, there is no longer the need for the same levels, or kinds of scrutiny of the EU, that have been in place in recent years. Parliament needs to adapt to the UK’s new relationship with the EU.

46.Professor Simon Usherwood and Dr Hannah White told us that there was an important need for a central point of EU scrutiny in the Commons. This was because the EU is such a wide-ranging organisation that the need for scrutiny and oversight goes beyond what you might expect for normal international relations.85 In Professor Usherwood’s view “having a specialised body within Parliament makes clear sense”.86 The Institute for Government agree that one committee, working also with subject-based committees, is the best way forward.87 As does Agata Gostyńska-Jakubowska, who recommends entrusting all post-Brexit scrutiny functions to a single EU Affairs Committee, noting that it would help reduce the burden on departmental committees.88

47.Dr Sara Hagemann meanwhile made the case for any European Affairs Committee to assist other committees in their EU-related work. She saw a role for such a committee in building up expertise in European affairs, becoming a specialist unit across many committees.89 She views this as very different kind of scrutiny because it becomes one where it is “powerful in terms of information and steering policies in specific directions, but also communicating what new initiatives may look like and bringing attention to topics.”90

48.As part of their inquiry into effective select committee scrutiny, the Liaison Committee also took a view on this. They concluded that:

One option which we believe requires further investigation is the creation of a single integrated European committee to provide oversight of EU-UK matters. […] This more integrated approach could also help to avoid gaps and overlaps, enabling deeper integration between the different elements of EU-UK oversight. Externally, it would also help to ensure consistent interparliamentary engagement on EU-UK matters both internationally and within the UK. Finally, it could assist with deployment of the existing EU legal and policy staff resource more efficiently, facilitating its availability for all committees.91

The Liaison Committee report also contained the following comments:

The need to involve—and to liaise between—departmental select committees has been recognised as fundamental. The UK in a Changing Europe conceived of a role for the Liaison Committee, suggesting that it could coordinate EU-related inquiries.92

Turning to scrutiny of the UK’s international treaties beyond those reached with the EU, Arabella Lang noted that there have been consistent arguments in favour of a joint (House of Lords and House of Commons) committee on international treaties. The House of Lords Constitution Committee concluded in its recent report on Parliamentary Scrutiny of Treaties that “a dedicated treaty committee is required to provide effective parliamentary scrutiny of treaties”. It noted that there was a choice to be made—by the Liaison Committees of both Houses—between establishing a treaty committee in either or both Houses, or establishing a joint committee, and that there were advantages and disadvantages of each approach.93

The need to coordinate between committees in relation to international treaties is similar to that identified for UK-EU matters. Dr Hestermeyer and Dr Simson Caird suggested that the Liaison Committee might also play a role in coordinating between committees, potentially by way of a Sub-Committee.94

49.Agata Gostyńska-Jakubowska said:

MPs should abolish the European Scrutiny Committee and put all post-Brexit scrutiny functions in the hands of one committee. This would reduce possible duplication in the committees’ work and give MPs a stronger voice vis-à-vis the government. […]95

50.In a letter of 17 December 2020 to the Chair of the House of Lords European Union Committee, the Chancellor of the Duchy of Lancaster said:

I do not […] believe that it would be proportionate to simply roll over existing [EU] scrutiny arrangements after the end of the Transition Period when the UK’s relationship with the EU will be fundamentally different.96

51.Brexit is done and we agree with the Government that Parliament no longer requires the complex EU scrutiny mechanisms that have existed until this point. What we need now, as a sovereign state exercising that sovereignty, is a new and proportionate mechanism to scrutinise our relationship with the EU. The House no longer requires two select committees with large memberships. In fact, we consider that any new EU Affairs Committee will unavoidably duplicate the work of departmental select committees and members and staff of such a committee will lack the specialist knowledge available to those committees. We therefore recommend that the Liaison Committee produce recommended allocations of responsibility for oversight of EU-UK relations to individual departmental select committees and itself establishes a sub-committee to co-ordinate this work to ensure important issues are being addressed and minimise duplication. The sub-committee could consist of the Chairs of committees most affected by EU-UK relations.

Role

52.The UK-EU relationship will require ongoing scrutiny. As highlighted by Professor Simon Usherwood, this would give “an opportunity for Parliament to be not merely a place that is a convening point and a clearing house for European issues within the UK, but a key axis for EU-UK relations”.97

53.Dr White said any such committee should be cross-cutting, rather than department-focused, with an ability to look more broadly than just at specific policy areas which, as she says, may be better delegated to and/or brought to the attention of departmental committees.98 Professor Usherwood noted that a cross-cutting committee would be particularly appropriate given that the TCA’s dispute resolution mechanism allows cross-linkage, meaning that a dispute in one policy area might have implications for a different Government department.”99

54.The areas of the UK-EU relationship that will require ongoing scrutiny are outlined in Chapter 2. The Liaison Committee should produce recommendations for which departmental committee is best placed to focus on the following issues, potentially through use of joint committee or guesting where appropriate:

• Monitoring the implementation and operation of the EU-UK Trade and Cooperation Agreement;
• Scrutinising the work of the Partnership Council and its specialised committees and working groups;
• Scrutinising the work of Withdrawal Agreement Joint Committee;
• Examining the implementation and operation of the Ireland/Northern Ireland Protocol;
• Monitoring and scrutinising policies that affect the rights of EU citizens in the UK and of UK citizens in the EU;
• Monitoring and examining any disputes that arise under any UK-EU agreements;
• Scrutinising any review of current agreements or consideration of suspension or termination and any negotiations to change or extend the terms of current agreements or make new agreements;
• Monitoring developments in EU law and policy that affect the UK;
• Developing interparliamentary relations with the European Parliament and parliaments in EU Member States

Powers

55.The Liaison Committee or its sub-committee will require additional formal powers beyond those of most other select committees (i.e. beyond the ability for call for persons, papers and records). As Dr Sara Hagemann told us, “Parliaments that have a lot of influence and are strong in European affairs in particular are those that have formal powers that enable them to directly influence Government positions, so there are institutional reasons for that influence.”100 For example, Agata Gostyńska-Jakubowska argues that “rather than abolishing the [European Scrutiny Committee] scrutiny reserve completely, parliamentarians should try to retain it in a modified form by amending the procedure to reflect the new post-Brexit institutional architecture.”101 The Liaison Committee suggests that a further way of Parliament engaging with the Joint Committee would be to require the Government to place particular issues on the agenda of the Joint Committee subject to the EU’s consent.102

56.Whilst of course the UK Government and the EU should rightly have the ability to agree decisions within meetings of the Partnership Council and its specialised committees, Trade Partnership Committee and Trade Specialised Committees, Withdrawal Agreement Joint Committee and its specialised Committees and Joint Consultative Working Group as they see fit, we believe it is also appropriate for Parliament to be able to scrutinise the work of these bodies and hold Ministers to account for the decisions and positions they adopt. As well as having sight of documents in relation to these meetings (both before and afterwards), we recommend that the Liaison Committee should be able to recommend that the Government request that an item be placed on the agendas of such meetings. We think this is a fair compromise in response to the loss of the European Scrutiny Committee’s formal ‘scrutiny reserve’ mechanism. The Government should ensure that the Committee is aware of any deadlines that would need to be met in order for such a request to be successfully made.

Use of sub-committees

57.As discussed in the Annex, the House of Lords European Union Committee has many sub-committees which consider issues in greater detail than their parent committee can. As Dr Sara Hagemann pointed out to us:

The House of Lords has one umbrella committee and then sub-committees. […] this may or may not be desirable in the Commons, but certainly there is a close connection to committees dealing with the more specific policy areas. I would highly recommend not just having the big perspective and the big umbrella committee doing the triage part but ensuring that responsibilities are defined for each and every policy area where there are close collaborations with the EU.103

58.Agata Gostyńska-Jakubowska recommends entrusting all post-Brexit scrutiny functions to a single European Affairs Committee in the Commons, which could in turn delegate work to sub-committees, much like in the Lords.104 She is of the view that:

This committee, like other select committees, would have the power to create ad hoc sub-committees. If the committee members thought that juggling [their] main scrutiny tasks was too much, they could delegate some of these roles to sub-committees. That would also give the committee the flexibility to respond quickly to any new, possibly sudden, developments in EU-UK relations without getting in the way of any of its regular tasks.105

59.As the House of Lords European Union Committee has demonstrated, effective use of the sub-committee system can allow committees to cover more ground than would otherwise be the case. While we do not accept Agata Gostyńska-Jakubowska’s recommendation of a standing committee, we do consider that use of sub-committees by departmental select committees for EU-UK relationship work would represent a sensible option to them in managing their workloads.

Relationship with other select committees

60.In addition to the importance of sharing EU staff expertise between select committees, there are other benefits to be drawn from joint working between committees. As Professor Adam Cygan noted in his evidence to us:

Better coordination of EU affairs within Parliament will be essential in order to maximise resources, avoid duplication of inquiries and to build Parliament’s capacity as an institution which is monitoring a policy-making and legislative processes in which the UK no longer participates. Thus, some distinction will be required between technical scrutiny work around future possible alignment of UK law with EU law and more substantive policy focused work and oversight of the UK-EU relationship. One change brought about by the parliamentary Brexit process has been that departmental select committees, which had hitherto mainly been peripheral actors in EU scrutiny, became more directly engaged. If this trend continues post [Transition Period], it needs to be managed in order for Parliament to respond to government proposals and utilise resources effectively.106

61.Both Rt Hon Sir David Lidington (when he was Prime Minister Theresa May’s de facto deputy) and Dr Hannah White have noted that, prior to the 2016 referendum result, select committees had very little interest in the EU-related elements of their roles. David Lidington told the House of Lords in 2019 that when he was Europe minister, he found it difficult to get departmental select committees to focus on the European dimension of their business.107 Whilst Dr White told us in evidence that:

Prior to 2016, EU scrutiny in the House of Commons was pretty siloed and very much seen as the preserve of the European Scrutiny Committee. Although there was a system at the time of trying to have rapporteurs in departmental committees who would take a particular interest in Europe on behalf of their committee, and be contacted by the European Scrutiny Committee if there was something relevant to that committee, it did not really work very well, to be honest. EU issues were dealt with pretty poorly by departmental committees. It just was not seen as a high priority in comparison to all the domestic scrutiny that they could be doing. I would be reluctant to go back to a situation like that.108

62.Dr Sara Hagemann highlighted the importance of having a committee in a coordination role “not just [being] a filter and post office to other departmental committees”;109 a coordination committee would need to “make the different interests and special focuses come together to something that is coherent across the different departmental committees.”110 The reason this is key is that “apart from the really important co-ordination in one committee, there needs to be the in-depth scrutiny in other committees too.”111 One of many elements to this is that, as noted by the Liaison Committee, “committees may need to monitor how the EU’s regulatory oversight role is replaced domestically (through a variety of agencies)”.112

63.Dr Hannah White suggests that one way of building links with other select committees is that committees “… could make use of guesting procedures to bring together small sub-groups of Members to work with it on different topic areas. In a way, it would be co-opting people with the right expertise for the right task, while being small enough to be nimble and to keep everybody focused on their role within the core committee.”113

64.Another important point to note is the expanded remits of departmental committees. As areas of competence have repatriated from the EU to the UK, this has in turn increased the remits of departmental select committees and added an additional layer of complexity to their work. This is one of the benefits of placing staff expertise in the shared resource of a European Affairs Unit to the benefit of multiple select committees.